As legal markets for recreational marijuana continue to open up in the U.S., and public opinion about responsible marijuana use slides towards acceptance, the requirements for employment-related drug testing are slowly evolving to meet the moment. News articles and blog posts about changes to employment related drug testing laws typically have a standard caveat that employers with workers covered by the U.S. Department of Transportation’s regulations are likely not impacted by whatever change in the law is being discussed. This blog post, however, addresses a recent change to the DOT’s rules. Specifically, the DOT announced a new testing option that employers subject to its regulations can use in order to get a more accurate picture of workers’ recent marijuana use.
Cannabis Employee Misclassification Case Moves Forward in Federal Court
On March 7, 2023, a federal court in Pennsylvania issued a ruling denying a cannabis company’s motion to dismiss claims based on the federal Fair Labor Standards Act (the “FLSA”). The opinion in DeMarco et al. v. FarmaceuticalRC, LLC et al., W.D. Pa. Case No. 2022cv-1164, covers familiar ground in the realm of FLSA misclassification cases, and explains why the plaintiffs—who work as drivers ferrying defendants’ cannabis products along their supply chain—sufficiently pled their claims. Specifically, the court applied the six-factor test for determining whether a given worker is an employee or an independent contractor and found that plaintiffs had sufficiently alleged the existence of an employer-employee relationship.
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